You work as the VP of Human Resources for Forever 65, Inc. Forever 65 is a retail fashion chain that sells sexy, modern clothing targeted towards senior citizen women. The store has a very small men’s section, but approximately 95% of company’s sales are to women. The store sells everyday clothing and evening wear as well as lingerie and swimwear.
Forever 65 is growing rapidly, and the company has recently been hiring a lot of new employees. Thus, you are receiving more HR questions than usual.
I recently had an applicant for a sales position who listed her gender as female, and referred to herself using female pronouns. However, I am quite sure that the applicant was a man wearing women’s clothing. He/she was wearing makeup and dressed in a very feminine way, but when he/she spoke it sounded like a false high pitched voice, and there were other signs that lead me to believe the applicant was biologically male. I personally don’t have any problems with transsexuals, but I know a lot of our customers are very conservative and might quit shopping here if we hire this sales associate. Is it illegal for me to consider this individuals gender identity in deciding whether or not to hire him/her?
I have two applicants for a sales position that are equally qualified, and both seem like they would be great workers. One applicant is 57 years old, and the other is 45. I consider the employees equal in every way, other than I prefer the 45-year-old employee simply because she is younger. Since she is younger, I think she will likely work for us for a bit longer before retiring and need less time off for health reasons. Is it illegal for me to factor in age in making this employment decision?
I recently had a male applicant for a position in our lingerie department. This position not only handles sales, but also helps handle measurements and fittings for women purchasing lingerie. This job entails going into the dressing room with women, giving opinions about lingerie, and sometimes even helping customers figure out how to get lingerie on. He seems like a nice enough guy, and he meets the technical qualifications for the job, but I don’t think our customers will be comfortable with a male serving in this position. Can I legally take this applicant’s gender into account in deciding whether or not to hire him for this position?
Q. 4 (15 points)
One of our employees recently converted to a new religion that she says requires her to stop working at 5:00 p.m. each day, as she must be at home by 5:30 p.m. each evening to pray. Our store is open until 8:00 p.m. each night. The way we currently schedule hours, we rotate evening shifts among the sales employees so employees take turns throughout the week working in the evenings (because evening shifts are unpopular). I have asked all of the other employees if they would be willing to work extra evenings to accommodate this employee, and they have said no. If she never works evenings and no other employee wants to cover her shift, it creates significant work problems for scheduling and for overall employee morale. Do I have to allow her to continue to work here and never work evenings, at the expense of the other employees?
Make sure you fully explain why, under the law, you reached your conclusion on each question — don’t just give your opinion! Your answer to questions 1-4 may not exceed two type-written pages, utilizing the formatting instructions provided herewith. Question 5 (fill in the blank/brief answer) (28 points): Answer the following questions A. Name six different categories/classes of individuals who are protected from discrimination under federal law:
B. Under federal law, the minimum wage is $7.25 per hour. The state of Washington passes a law setting the minimum wage in the state as $15.00 per hour. If your company has employees in Washington, what minimum wage must it pay, and why? (5 points)
C. How old must you be to qualify as a plaintiff in an age discrimination case? (2 points) D. Which federal agency serves as the primary governmental body that enforces the National Labor Relations Act? (2 points) E. Briefly explain the difference between an independent contractor and an employee, and list at least two of the factors that courts consider in making the determination of whether an agent is an employee or an independent contractor. F. Briefly explain the difference between a disparate impact case and a disparate treatment case.
G. Between the state and the federal government, which has the most authority to regulate immigration? (2 points) Question 6: (20 points) You oversee Human Resources for a staffing company that provides temporary manual laborers for employers. You provide workers for the logging, construction, and dock loading industries. Your company has various hiring requirements, but one specific requirement has recently become an issue:
You require all employees to complete a physical fitness test, and upon hiring all employees must complete this test every year in order to maintain employment. The purpose of this physical fitness test is to make sure that your workers are able to fulfill the physical demands of the jobs in the industries you supply workers to. This physical fitness test requires applicants to be able to:
Carry a 100 pound log 100 yards. Lift a 200 pound bag of sand off the ground and load it in the back of a truck 5 times. Push a wheelbarrow weighted with 350 pounds a distance of 200 yards.
your company also has physical size requirements. All workers must be at least 5 feet, 9 inches tall, and weigh at least 150 pounds.
A group of female applicants has threatened a lawsuit, alleging that these physical fitness requirements and size requirements are discriminatory. Their allegations are based upon the fact that only 1 female applicant has been able to complete these physical fitness requirements over the past 10 years, even though in that same time period 300 women have applied and attempted the test. These complaining female applicants claim that this physical fitness requirement and the minimum size requirement are discriminatory against women because it filters out so many female applicants, and are threatening to sue if a separate standard is not developed for women.
The CEO of your company has asked you to evaluate the merits of this complaint and advise him regarding how to handle it. The company has used this same test for the past 30 years and he says he is not inclined to change or suspend this physical fitness test or the minimum size requirements. But wants to know if he is legally obligated to do so. In answering this question, make sure you fully explain the type of complaint these women could bring, any defenses that the company could make against such a claim, what type of evidence the company would need to successfully raise any available defense, and whether you think such a defense would be successful or not.